Yesterday, the Supreme Court suggested it might be looking for a way out of ruling substantively on the questions of if and how congressional committees may subpoena the personal financial records of a sitting president. The Court requested additional briefing as to whether the political question doctrine—the idea that some questions are committed by the Constitution to the elected branches—bars federal courts from wading into the  case.

 Three cases involving President Trump’s tax returns are currently pending before the Supreme Court and will be argued in early May.  Two of the cases, Trump v. Mazars USA, LLP and Trump v. Deutsche Bank AG, involve efforts by three House Committees to secure eight years’ worth of President Trump’s personal financial and tax records from an accounting firm and two banks. In the remaining case, Trump v. Vance, the Manhattan District Attorney sought the same information.  The Court’s briefing order requires the parties to the first two cases to explain the applicability (or non-applicability) of the political question doctrine.

Trump filed suit challenging the House subpoenas in his personal capacity.  And in an amicus brief filed by the Department of Justice, the Solicitor General explained that this is the first time a congressional committee has demanded a president’s personal records, and that subpoenas for such information pose “a serious risk of harassing the President and distracting him from his constitutional duties.”  According to the Justice Department, Article II and separation of powers principles protect the Office of the President from such interference, and thus Congress is required to make a “heightened showing” of both a legitimate legislative purpose and the need for the information sought whenever it requests information from a president. 

Further, the legislative purpose must be set forth specifically and courts must scrutinize that purpose to ensure the information requested is “demonstrably critical to the legislative purpose.”  According to DOJ, the boilerplate statement that the congressional subpoenas furthers “multiple laws and legislative proposals” is too vague to withstand meaningful review.

If the Supreme Court ducks the case and decides that the political question doctrine applies this will mean the federal courts may not intervene in the dispute.  Such a non-ruling will make it impossible for President Trump to prevent his accounting firm and banks from releasing his personal information, but it will also make congressional subpoenas directed to the executive unenforceable in federal court.  This result would anomalously leave the ultimate decision as to whether and how to comply with a subpoena not to the other political branches but to private banks and accounting firms.  Even if the political question doctrine is implicated, it cannot mean that private firms get the final say-so over whether to release the personal financial records of a sitting president.  

The political question doctrine comes into play when the elected branches can work out the dispute—it has never held that accountants and bankers get to decide important questions of constitutional law.  The Supreme Court should rule on these cases and hold Congress to a “heightened showing” of a legitimate legislative purpose and need for the information.